Federal Deposit Insurance v. Fedders Air Conditioning, USA, Inc.

September 21, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1889

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF NEW BANK OF NEW ENGLAND, N.A.,

Plaintiff, Appellee,
v.

FEDDERS AIR CONDITIONING, USA, INC.,
Defendant, Appellant.

No. 93-1890

FEDDERS AIR CONDITIONING, USA, INC.,
Plaintiff, Appellant,

v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF BANK OF NEW ENGLAND, N.A., AND AS RECEIVER OF
NEW BANK OF NEW ENGLAND, N.A., ET AL.,

Defendants, Appellees.

ERRATA SHEET

On page 2, line 1, replace "1886," with "1986,".

On page 4, line 5, first full paragraph, replace "bank),"" with
"bank"),".

On page 12, line 5, paragraph 2, replace "{$250,000]," with
"[$250,000],".

On page 13, line 6, first full paragraph, replace "preclude" with
"precludes".

On page 14, line 3, paragraph 2, replace "Williams'" with
"Williams".

On page 14, line 4, paragraph 2, add the word "of" before the
word "attorneys'".

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1889

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF NEW BANK OF NEW ENGLAND, N.A.,
Plaintiff, Appellee,

v.
FEDDERS AIR CONDITIONING, USA, INC.,

Defendant, Appellant.

No. 93-1890
FEDDERS AIR CONDITIONING, USA, INC.,

Plaintiff, Appellant,
v.

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER
OF BANK OF NEW ENGLAND, N.A., AND AS RECEIVER OF
NEW BANK OF NEW ENGLAND, N.A., ET AL.,
Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

Richard d'A. Belin with whom Michael A. Albert and Foley, Hoag &

Eliot were on brief for appellant.

Marta Berkley, Federal Deposit Insurance Corporation-Legal, and

Kathleen C. Stone with whom David C. Aisenberg and Williams & Grainger

were on brief for appellees.

September 15, 1994

BOUDIN, Circuit Judge. On December 1, 1986, Fedders Air

Conditioning, USA, Inc. ("Fedders") signed a contract with

Liberty Effingham Limited Partnership ("Liberty") to sell to

Liberty a very large warehouse in Effingham, Illinois, owned

by Fedders. The warehouse covered 10 acres and the sale

price was $7 million. The warehouse was then under lease to

a tenant, Sherwin-Williams, and the contract provided that

Liberty would assume Fedders' obligations as landlord with an

important qualification concerning roof repairs.

The Sherwin-Williams lease provided that Fedders would

make certain roof repairs, as well as other alterations, to

eliminate leakage. In the sale of the warehouse to Liberty,

it was intended that Fedders would make the roof repairs at

its own expense. Accordingly, Fedders agreed to indemnify

Liberty for any loss or expense to Liberty arising under

specific repair provisions of the Sherwin-Williams lease. To

assure Fedders' performance, the parties agreed that of the

$7 million purchase price to be paid by Liberty, Fedders

would place $250,000 in escrow with Bank of New England ("the

bank").

Liberty made a deposit payment of $50,000 to Fedders and

originally intended to give Fedders the balance--$6,950,000--

at the closing; Liberty expected to borrow $6.7 million from

Bank of New England and to furnish the balance ($250,000)

itself from its own account in the same bank. Fedders, it

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was intended, would then return $250,000 to Bank of New

England to be held in an escrow account for Fedders, pending

completion of Fedders' repair obligations under the lease.

(The stated figures are approximate, as there were other

minor adjustments involved in the closing.)

At some point prior to the closing, it occurred to the

parties that instead of having the bank transmit the full

balance due on the purchase to Fedders and then take back

$250,000 for the escrow account, it would be simpler to have

the bank retain $250,000 for the escrow account and pay

Fedders only the net amount. The parties agreed to follow

this course. At the closing in December 1986, Fedders was

paid the $6.7 immediately due to it (the $7 million purchase

less the $50,000 deposit and $250,00 escrow).

For its part, Liberty gave Bank of New England its

promissory note for $6.7 million to cover the bank loan

needed to complete the purchase. The bank in turn signed the

escrow agreement acknowledging that the bank had received the

$250,000 "deposit" to be held in escrow and invested in a

"commercial bank money market account" (unless otherwise

directed). In fact, for reasons that are not explained, the

bank did not set up the escrow account, either then or later.

Although it held Liberty's note for $6.7 million, the bank

appears to have recorded a draw-down on the loan of only

$6,450,000.

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After the closing Fedders did not satisfactorily

complete the roof repairs. Liberty eventually replaced the

entire roof at a cost of over $1 million. In 1987, Liberty

brought suit against Fedders in Massachusetts state court to

recover the repair cost from Fedders. Later Liberty added

Sherwin-Williams as a defendant, to obtain declaratory relief

against it; and Sherwin-Williams then claimed damages from

Fedders and Liberty on account of roof leaks it had suffered.

In December 1990 Liberty assigned its claim in the case to

Bank of New England as part of a workout of its debt to the

bank.

In January 1991, Bank of New England became insolvent

and the Federal Deposit Insurance Corporation became its

receiver. 12 U.S.C. 1821(c)(2). The FDIC transferred the

Liberty claim against Fedders to New Bank of New England,

N.A. ("the bridge "bank")," see 12 U.S.C. 1821(n), as part

of a purchase and assumption agreement. New Bank of New

England in turn assumed Bank of New England's contractual

liability for deposit accounts. In July 1991, the bridge

bank was itself dissolved and the FDIC became its receiver.

In August 1991 the FDIC, as receiver for New Bank of New

England, removed the Liberty suit against Fedders to the

district court, see 12 U.S.C. 1819(b)(2), and was

substituted for Liberty.

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In April 1992, Fedders filed suit in federal district

court in Massachusetts against the FDIC as receiver for both

the failed Bank of New England and for the dissolved bridge

bank. On several theories (insured deposit, breach of

contract, breach of fiduciary duty, unjust enrichment),

Fedders sought to recover the alleged $250,000 escrow. The

original Liberty action against Fedders, previously removed

to the district court, was partly consolidated with the new

Fedders action. The district court tried the two cases as a

bench trial beginning on April 12, 1993. Shortly before the

trial, Sherwin-Williams made its own settlement and ceased to

be a litigant.

The district judge, sitting as the factfinder, found

against Fedders in the original Liberty action and awarded

the FDIC $775,000 for the roof replacement. At a later date,

the district judge also rejected Fedders' claims to recover

the escrow amount from the FDIC. The court found that

Fedders was not a "depositor" entitled to recover an insured

deposit because no escrow account had ever been established,

saying:

The escrow account that [the failed Bank
of New England] was contractually bound
to create and formally acknowledged that
it had created was in fact never created.
Fedders therefore never acquired the
status of a "depositor," in the sense
relevant to the present litigation,
notwithstanding [the bank's] assurances
in the Escrow Agreement. Consequently,
FDIC as receiver did not succeed to any

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"deposit" liability associated with the
phantom escrow account . . . .

Although the failure to set up such an account gave Fedders a

contract claim against Bank of New England, the court found

that Fedders had waived this claim by failing to assert it

within the time fixed for asserting claims against the FDIC

as receiver for a failed bank. 12 U.S.C. 1821(d).

Finally, returning to the original Liberty action, the

court awarded the FDIC, as receiver for New Bank of New

England, attorneys' fees in the amount of $64,855.91. The

court ruled that Fedders was liable for this amount under its

indemnity agreement with Liberty, Liberty's rights having

been assigned to the failed bank, then acquired by the bridge

bank pursuant to the purchase and assumption agreement and

finally held by the FDIC as the latter's receiver. How this

attorneys' fee award was calculated is an issue to which we

will return.

Fedders then appealed to this court. First, it disputes

the district court's disposition of Fedders' claims against

the FDIC relating to the escrow amount. Second, Fedders

contests the award of attorneys' fees to the FDIC in the

original Liberty action; Fedders does not challenge the

underlying award of $775,000 to the FDIC for Fedders' failure

to repair the roof. We begin with the escrow issue which is

by far the more complicated of the two, and thereafter

address the attorneys' fees award.

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At the outset, it is important to understand that

Fedders' central claim on appeal is that it has made a

"deposit" in Bank of New England, which the FDIC has

committed itself to honor without regard to the normal

$100,000 limitation or any objection as to the timeliness of

a "deposit" claim.1 The FDIC in turn does not dispute this

alleged commitment but asserts that there was no "deposit"

within the meaning of the statute and, further, that its

regulations make the bank's records conclusive. This is a

civil case, and we take the issues as the parties have framed

them.

One begins in construing a statute with its language.

The statutory definition of deposit is two pages long, 18

U.S.C. 1813(l), but Fedders relies principally upon clauses

that include as deposits two specific categories: "the unpaid

balance of money or its equivalent received or held by a bank

. . . in the usual course of business and for which it has

given or is obligated to give credit," and "money received or

held by a bank . . . in the usual course of business for a

1The FDIC as receiver is not the insurer of deposits--
the FDIC insures in its corporate capacity--but the FDIC does
pay off insured deposits, taking the money from the
appropriate insurance fund. 12 U.S.C. 1821(f). The FDIC
waived the ordinary $100,000 limit in this case. It also has
not claimed that the request for return of an insured deposit
is untimely, nor has it offered any objection based on its
separate capacity as insurer and receiver.

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special or specific purpose . . . including . . . escrow

funds . . . ." 12 U.S.C. 1813(l)(1), (3).

In response, the FDIC has chosen to stress the

underlined phrase that is part of the definition of deposit

under both subparagraphs of section 1813(l) relied on by

Fedders: money or its equivalent received or held by a bank

in the usual course of business. The FDIC also underlines

the term "account" which appears only in subparagraph 1,

defining "deposit" to include

the unpaid balance of money or its equivalent
received or held by a bank . . . in the usual
course of business and for which it has given or is
obligated to give credit, either conditionally or
unconditionally, . . . to a[n] . . . account . . .
.

Here, says the FDIC, Bank of New England "did not

receive any money from Fedders, and there was no account."

On the basis of this language, the FDIC distinguishes a

number of cases, several of which are older but otherwise

helpful to Fedders, such as FDIC v. Records, 34 F. Supp. 600

(W.D. Mo. 1940) (deposit insurance covered payment to cashier

who pocketed the cash). More important, the reference to

money "received or held" encourages the FDIC to rely on FDIC

v. Philadelphia Gear Corp., 476 U.S. 426 (1986). "The

analysis" in that case, the FDIC tells us, "is much the same

in this case."

We can easily put to one side two of the FDIC's three

points based on the statute and Philadelphia Gear. The fact

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that Fedders paid no money to the bank means nothing; Liberty

gave the bank a note, readily described as "the equivalent"

of money, to cover a loan by the bank to Liberty, $250,000 of

which the bank promised to retain as an escrow deposit for

Fedders. Thus, the equivalent of money was "received."

Indeed, nothing in the substance of the transaction would be

different if, as the parties had originally intended, the

bank had given Fedders the $250,000 and Fedders had

immediately given it back to the bank.

Philadelphia Gear is likewise not in point. There the

Supreme Court rejected a claim that a standby letter of

credit backed by a contingent promissory note qualified as a

"deposit" under section 1813(l)(1). Although the FDIC

admitted that an ordinary letter of credit would be treated

as a deposit, it distinguished the standby letter (a promise

by the bank to pay the seller only if the buyer did not)

based on an administrative practice of not treating standby

letters as deposits. In accepting this longstanding

interpretation, the Court noted that the buyer who authorized

the letter had not even given the bank anything beyond a

contingent promise to pay. Id. at 440.

But Philadelphia Gear did not say that it is a condition

of all "deposits" that hard currency be paid to the bank; the

Court was concerned with distinguishing narrowly between

standby and ordinary letters of credit. In fact the Court

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noted the FDIC's own concession that an ordinary letter of

credit in the seller's favor, backed by the buyer's

unconditional promissory note, would be a deposit. Id. at

440. Here, such an unconditional note for a sum including

the $250,000 escrow was given to the bank.

Although the "held or received" language and

Philadelphia Gear are red herrings, the remaining point in

the FDIC's statutory argument--the statutory reference to an

"account"--does deserve attention. Under the statute, the

money or its equivalent must not only be held or received by

the bank, but must (unless another alternative condition is

satisfied) be a payment "for which [the bank] has given or is

obligated to give credit . . . to a[n] . . . account." 12

U.S.C. 1813(l)(1). Here, the FDIC says, there was no

account, so the money or its equivalent cannot be deemed a

deposit.

We agree with the FDIC, and with the district court,

that there was no account established pertaining to the

$250,000 escrow; but the statute speaks not only of money or

its equivalent for which the bank "has given" credit to an

account but also money or its equivalent for which the bank

"is obligated" to give credit to an account. Here Liberty

gave a promissory note to the bank in exchange for a loan,

$250,000 of which the bank promised to place in an escrow

account for Fedders. Although the bank failed either to

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create the account or deposit the money in it, it does appear

that it was "obligated" to give credit to an account for this

amount.

Fedders relied on the "obligated" language in its brief,

and the FDIC has not answered it. There may be answers not

obvious to us in this very technical area. Still, the five

paragraphs of section 1813(l) define "deposit," technically

but elaborately, to cover a very large number of

transactions, many of which might not be called deposits by a

lay person. In sum, we hold that the promissory note was the

equivalent of money; that it was held or received by the bank

in the usual course of business to support a loan; and that

in exchange the bank was "obligated" to credit an account in

the amount of $250,000.

We do not reach the alternative argument made by

Fedders that the "escrow" reference in subparagraph 3 makes

the transaction a deposit even if subparagraph 1 does not.

We do note that there is no parallel "obligated" language in

subparagraph 3, and the FDIC could argue that only funds

actually treated by the bank as escrow funds are embraced by

subparagraph 3. But the FDIC has made no expressio unius

argument that an escrow payment excluded from subsection (3)

is automatically outside subsection (1), and we doubt that

any such exclusivity is implied.

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The FDIC's other line of defense is its own regulation;

under 12 C.F.R. 330.3(h), it asserts that "the deposit

account records of the failed bank are controlling for

purposes of determining deposit insurance coverage." That

section, after explaining that ownership under state law of

funds on deposit is a necessary condition for insurance

coverage, continues:

"Deposit insurance coverage is also a
function of the deposit account records
of the insured depository institution . .
. which, in the interest of uniform
national rules for deposit insurance
coverage, are controlling for purposes of
determining deposit insurance coverage."

The FDIC then tells us that "numerous courts" have held that

the FDIC may rely "exclusively" on the "account records" of

the failed institution to determine deposit insurance

coverage.

Assuming this to be so, we fail to see why the FDIC

believes that "account records" are missing in this case.

Far from defining "account records" narrowly, a companion

regulation states that "deposit account records" include a

variety of specific items (e.g., account ledgers,

certificates of deposit, authorizing corporate resolutions)

and "other books and records of the insured depository

institution [including computer records] which relate to the

depository institution's deposit taking function . . . ." 12

C.F.R. 330.1(d) (omitting exclusions not here relevant).

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In this case the district court made a specific finding,

not challenged by the FDIC on appeal, that Bank of New

England "held . . . . a copy [of the escrow agreement] in its

records." This agreement, signed on behalf of the bank,

explicitly acknowledged "receipt of said amount [$250,000],"

denominated the "Deposit"; and the document provided for the

deposit to be invested in a "commercial bank money market

account" (unless a different investment was approved by

Fedders in writing). In other words, the bank's books and

records did include evidence of the "deposit."

We might have a different case if the FDIC had disputed

the amount of the deposit and invoked 12 C.F.R. 330.3(i).

That regulation does purport to make the "deposit account"

conclusive as to the "amount" of a deposit. Assuming a

"deposit account" is something narrower than the bank's books

and records--which it may well be--the FDIC has never

challenged the $250,000 figure nor has it relied upon

subsection (i). Once again, after years of litigation, it

is fair to resolve the case in the terms that the parties

have presented it.

Accordingly, we think it is unnecessary for us in this

case to plunge ourselves into the morass of decisions that

bear on whether and when erroneous bank records are

conclusive against the depositor and when correctly recorded

but unauthorized activity by a bank (e.g., paying an insured

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account to a thief) precludes an insurance claim.2 These

cases reflect the severe tension between two values: the

legitimate expectations of the depositor and the regulator's

desire to rely upon existing records to expedite the handling

of bank emergencies. Not surprisingly, the cases do not all

point the same way. Here, however, the FDIC's premise that

the "deposit account records" defeat Fedders' claim is

mistaken.

What remains is the Fedders attack on the district

court's award of attorneys' fees. The only basis for such

fees was the clause in the indemnity agreement between

Fedders and Liberty incident to the purchase and sale of the

warehouse and the latter's assumption of the Sherwin-Williams

lease. The agreement, as construed by the district court,

required Fedders to indemnify Liberty for attorneys' fees

arising from litigation related to certain roof-repair

provisions of the lease. The FDIC has succeeded to Liberty's

rights of indemnification.

In the district court the FDIC urged that the indemnity

covered all of its attorneys' fees incurred in the roof

repair action originally brought by Liberty against Fedders.

The district court, however, determined that only the portion

2See, e.g., In Re Collins Securities Corp., 998 F.2d 551

(8th Cir. 1993); Abdulla Fouad & Sons v. FDIC, 898 F.2d 482

(5th Cir. 1990); Jones v. FDIC, 748 F.2d 1400 (10th Cir.

1984); FDIC v. Irving Trust Co., 137 F. Supp. 145 (S.D.N.Y.

1955); FDIC v. Records, 34 F. Supp. 600 (W.D. Mo. 1940).

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of Liberty's or the FDIC's attorneys' fees that related to

Sherwin-Williams own lease claims, asserted by Sherwin-

Williams in that case, were covered by the indemnity

agreement. Sherwin-Williams ceased to be a party after very

lengthy pretrial activity but shortly before the trial

itself. On appeal, this construction of the indemnity is not

disputed by either side. The only issue concerns the

district court's apportionment of counsels' bills.

Because the Liberty and FDIC counsel had not kept

records to segregate particular hours to work relating to the

Sherwin-Williams' claims, the district court made its own

apportionment. Of the $165,000 of attorneys' fees incurred

by Liberty or the FDIC in Liberty's action, counsel estimated

for the court that 50 percent of the total attorney time was

attributable to the Sherwin-Williams claims. The district

court found this boilerplate conclusion insufficient standing

by itself; but its own evaluation of the record persuaded it

that the work done by Liberty or FDIC counsel on the Sherwin-

Williams claims justified an award of just under $65,000 in

attorneys' fees, calculated as follows:

First, of the fees incurred by Liberty between April

1988 and March 1991, the district court found that just under

$25,500 was attributable to the Sherwin-Williams claims

(rather than the $36,000 claimed by the FDIC based on its 50

percent apportionment). The court examined each of the

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invoices submitted by counsel and for each one made a

separate estimate (ranging from 15 to 50 percent) as to the

portion of each invoice so attributable. The court said it

was resolving all ambiguities against the FDIC since it bore

the burden of proof as to fees.

Second, of the fees incurred by the FDIC, as receiver of

the banks who succeeded to Liberty's interest, the court

found that just under $40,000 was attributable to the

Sherwin-Williams claims (instead of the $46,500 claimed by

the FDIC). The court assigned to those claims 50 percent of

the fees incurred prior to December 31, 1992, based on its

review of the relevant docket entries; and it similarly

assigned 25 percent of the fees between that date and April

8, 1993 (when Sherwin-Williams settled its claims) since by

1993 the roof repair claim against Fedders was moving toward

trial and the Sherwin-Williams damage claims toward

settlement.

Fedders' argument on this appeal is straightforward.

The company does not attack any of the specific computations

made by the court. Instead, it says simply that Fedders'

indemnity commitment to Liberty is a contract governed by

Illinois law; that Illinois law requires "detailed proof of

the amount and basis" for attorneys' fees even where

attorneys' fees are promised by contract; and that such

detailed proof was not supplied in this case. Fedders' main

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authority, Kaiser v. MEPC American Properties, Inc., 518

N.E.2d 424 (Ill. App. 1987), does indeed say that the

attorneys' fee claimant must present "detailed records

maintained during the course of the litigation containing

facts and computations upon which the charges are

predicated." Id. at 428.

We will assume from the district court's description of

what the court had to do (and from the FDIC's silence on this

point) that the FDIC counsel certainly did not furnish

information needed to separate the Sherwin-Williams time from

the remaining time. But while such a deficiency would surely

permit the district court to reject the fee application,

nothing in Kaiser requires that the court do so if it can

fill the gap in proof itself. In fact, in Kaiser the

appellate court appeared to agree with the claimant that "the

trial court ha[d] the discretion to consider the content of

the record [i.e., "the entire case file"] to determine a

reasonable fee"; but the court upheld the trial judge's

discretionary decision not "to conduct the in-depth

examination necessary to locate documents and pleadings" to

substantiate individual items. 518 N.E.2d at 429.

Even if we treat Kaiser as an authoritative statement of

Illinois law--and the FDIC disputes this--it arguably

licenses, and certainly does not clearly preclude, a trial

judge's own decision to supply from elsewhere in the record

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supporting information and inferences that the claimant

neglected to collect. Here, the district court made

precisely this effort, explaining that the FDIC's original

fee request was based on a reasonable reading of the

indemnity, even though the court ultimately read the

indemnity more narrowly. This course was not required, but

neither do we see why it was forbidden.

Fedders identifies no other error in the calculations.

It does not try to show how the fee request information was

deficient beyond the obvious failure to allocate (except by

the inadequate boilerplate 50 percent estimate alleged to

reflect all of the work over a lengthy period). Nor does

Fedders offer specific attacks upon the district court's own

computations (which were several pages long)--for example,

the decision to assign 25 percent of the April 1, 1988,

invoice to the Sherwin-Williams claims--by seeking to show

that they are irrational or without basis. Limiting

ourselves to the narrow challenge made by Fedders, we

conclude that the award of attorneys' fees was justified.

More broadly, we think that the district court admirably

handled this complex, double-barreled law suit and agree with

its treatment of practically all of the issues raised. On

the single one where we part company--the "obligated" clause

of section 1813(l)(1)--we note that the district court did

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not discuss the clause, possibly because it was not stressed

by counsel at the trial or the subsequent hearing.

The judgment is affirmed in part and reversed in part

and the matter remanded to the district court in order to

permit the judgment entered against Fedders in favor of the

FDIC to be adjusted--whether by reduction or by a counter

judgment in favor of Fedders--to reflect the $250,000 deposit

that the bank was obligated to escrow (including any interest

adjustment that the district court may find appropriate) and

that is now owing to Fedders. No costs.

It is so ordered.

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